C. G . APPELLANT AND: T. L . RESPONDENT Coram: D.E. Fry C.J.N.L., L.R. Hoegg v. F.P. O’Brien JJ.A., 2024 NLCA 1

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : C . G. v. T.L. , 2024 NLCA 1 Date : January 2, 202 4 Docket Number : 202101H0012 BETWEEN: C. G . APPELLANT AND: T. L . RESPONDENT Coram: D.E. Fry C.J.N.L., L.R. Hoegg and F.P. O’Brien JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 200008T00851 ( 2021 NLSC 8 ) Appeal Heard: February 23, 2023 Judgment Rendered: January 2, 2024 Reasons for Judgment by: F.P. O’Brien J.A. Concurred in by: D.E. Fry C.J.N.L. and L.R. Hoegg J.A. Counsel for the Appellant: Natika J.

Hearn Counsel for the Respondent: Self-Represented Authorities Cited: CASES CITED: Weber v. Weber , 2020 ONSC 4098 ; Ethier v. Skrudland , 2011 SKCA 17 ; Briard v. Briard , 2010 BCCA 431 , leave to

appeal to SCC refused, 33949 (17 February 2011); Carpenter v. March , [2012] N.J. No. 184, 325 Nfld. & P.E.I.R. 351 ; Krangle (Guardian ad litem of) v. Brisco , 2002 SCC 9 , [2002] 1 SCR 205; Wetsch v. Kuski , 2017 SKCA 77 , leave to appeal to SCC refused, 37836 (14 June 2018); Senos v. Karcz , 2014 ONCA 459 ; D.B.S. v. S.R.G. , 2006 SCC 37 , [2006] 2 SCR 231; Colucci v. Colucci , 2021 SCC 24 . REGULATIONS CONSIDERED: Federal Child Support Guidelines , SOR/97-175, section 3(2) . STATUTES CONSIDERED: Public Trustee Act , 2009 , SNL 2009, c. P-46.1 ; Divorce Act , RSC 1985, c. 3 (2nd Supp .), section 2(1) . F.P.

O’Brien J.A.: INTRODUCTION [ 1 ] This appeal involves a dispute about the payment of child support. [ 2 ] The child in question is severely disabled. The parties to the appeal are her parents, the appellant C.G. (hereafter, the father) and the respondent T.L. (hereafter, the mother). They were married at the time the child was born, and separated when she was approximately three years old, at which time the mother became the sole caregiver. The child has lived exclusively with her mother since that time, with her father paying child support.

The child is now in her twenties. [ 3 ] The child was born with congenital defects and subsequently suffered a catastrophic injury as a result of alleged negligence in medical treatment received when she was an infant. She suffers from profound developmental delay and compromised health. The cause of the child's condition was the subject of litigation.

That litigation was settled and the settlement, approved by the Supreme Court of Newfoundland and Labrador, was structured through an annuity that provides for monthly installments of a fixed sum, together with periodic lump sums, to continue for the life of the child. The Public Trustee, appointed under the Public Trustee Act , 2009 , SNL 2009, c. P-46.1 , manages the structured settlement payments and disburses amounts to pay for approved expenses for the child's care. [ 4 ] The father’s position is that he is no longer responsible for paying child support.

He argues that his obligation to pay ceased once the child reached the age of majority, on her nineteenth birthday. He contends that, at that time, the child no longer met the legal definition of “a child of the marriage” under the Divorce Act , RSC 1985, c. 3 (2nd Supp ) . The father also argues that the payments from the structured settlement cover all the child’s expenses and, as a result, he has no present or future obligation to pay child support. [ 5 ] The mother’s position is that the payments from the structured settlement do not cover all the child’s expenses.

She submits that there are additional, recurring expenses for the child that she alone has been paying, including for example expenses associated with the child’s food, accommodations, clothing, and other day-to-day costs. The mother submits that, because of the child’s severe disability, the child continues to be a “child of the marriage”, as defined by the Divorce Act .

She contends that there is an ongoing parental responsibility to pay for expenses not covered by the structured settlement, and that these expenses should be shared by both parents, and not paid by her alone. [ 6 ] The father made an application to the Supreme Court of Newfoundland and Labrador in which he asked the Court to find that the child was no longer a child of the marriage and to declare that his obligation to pay support ended when the child turned nineteen.

He also requested that he be reimbursed for all amounts that he paid for child support since the child turned nineteen, and that arrears of child support owed by him be forgiven. [ 7 ] A Supreme Court Judge found that the child remained a child of the marriage and confirmed that there are ongoing parental obligations to pay support (the “Judge’s decision”, 2021 NLSC 8 ). [ 8 ] Having found that there was an ongoing entitlement to child support, the Judge considered the appropriate amount to be paid.

The Judge decided that it was not appropriate in this circumstance to use the Federal Child Support Guidelines, SOR/97-175 (the “ Guidelines ”) to determine future support. Rather, the Judge concluded that support should be based on a proportionate sharing, between the parents, of the child’s appropriate expenses that are not covered by the structured settlement. [ 9 ] The Judge also dismissed the father’s request for reimbursement of child support payments made since the child turned nineteen, but forgave the arrears of child support that the father owed.

ISSUES [ 10 ] The issues to be considered on appeal are as follows: 1. For child support purposes, does the child continue to be a child of the marriage after turning nineteen? 2. If the child continues to be a child of the marriage, with ongoing parental obligations to provide child support, how should support be determined and shared between the parents?

3. Is the father entitled to reimbursement of child support payments made since the child turned nineteen? Issue 1 For child support purposes, does the child continue to be a child of the marriage after turning nineteen? [ 11 ] The Judge decided that the child remained a child of the marriage for purposes of receiving child support from her parents. For the reasons that follow, I would conclude that the Judge made no error in this respect. [ 12 ] The Divorce Act provides that an order can be made “requiring a spouse to pay for the support of any or all children of the marriage”. In this context, “child of the marriage” is defined in s. 2(1) of the Divorce Act , as follows: 2

(1) In this Act , child of the marriage means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [ 13 ] As the child had reached the age of majority on her nineteenth birthday, s. 2(1) (

b) is applicable. [ 14 ] In interpreting s. 2(1) (

b) to determine whether the child meets the statutory definition of a “child of the marriage” in these circumstances, consideration must be given to: (

i) whether the child is under the charge of her mother; and (ii) whether, due to her disability, the child is unable to withdraw from her mother’s charge or obtain the necessaries of life. [ 15 ] The mother argued that the child remained under her charge because she continued to live with her and rely on her for care. She further argued that, due to the child’s disability, she was unable to withdraw from her mother’s charge (i.e., her care) or to obtain the necessaries of life.

Therefore, the mother submitted that the child remained a child of the marriage, and that child support should continue. [ 16 ] The father acknowledged that the child remained under her mother’s charge but argued that, due to payments provided through the structured settlement, the child could withdraw from her mother’s charge and obtain the necessaries of life. Therefore, the father argued that she was no longer a child of the marriage, and no further child support should be payable. [ 17 ] The Judge interpreted the requirements of s. 2(1) (

b) in the context of the specific circumstances of the child’s disability and considered how these circumstances informed whether she met the Divorce Act definition of a “child of the marriage”. Is the child unable to withdraw from her mother’s charge? [ 18 ] To establish entitlement for child support on this basis, it was necessary to demonstrate that the child: (

i) was under the charge of her mother; (ii) had a disability; and (iii) was unable to withdraw from her mother’s charge because of the disability. [ 19 ] There was no issue that the child, who continued to live with her mother in her mother’s home, and continued to receive care from her, was under her mother’s charge.

The child is exclusively under the care of her mother, and her father has not been involved in her care since infancy. [ 20 ] In considering whether the child had a disability, and whether she was unable to withdraw from her mother’s charge because of the disability, the Judge assessed the evidence relating to the severity and permanency of the child’s condition. [ 21 ] The Judge noted that: the child was “ born with several congenital defects that result in her requiring special care”; “as a young child she suffered further injury due to negligence”; she “functions cognitively at the age of a young child”; her “injuries are permanent and have significantly complicated her care”; and she “will never be able to live independently and requires 24-hour care” (Judge’s decision, at paras. 4, 16). [ 22 ] It was further observed that the child has been in the sole charge of her mother since infancy and that she: “will likely continue to live with her mother indefinitely. [The mother] looks after many of [the child’s] needs.

She also relies heavily on additional home care workers as well as respite workers for [the child’s] care” (Judge’s decision, at para. 4). [ 23 ] The Judge’s factual determinations in this regard are grounded in the evidence and the record. For example, the Judge referred to medical information, provided to the court by consent, from the child’s treating pediatric surgeon who had followed her for almost ten years.

The Judge noted that, given the surgeon’s familiarity with the child as her surgeon, “his observations are credible and reliable evidence that assists me in determining whether or not [the child] is capable of withdrawing from her parents’ care ” (Judge’s decision, at para. 18). [ 24 ] The pediatric surgeon indicated that the child “ has had distinct developmental and intellectual delay”, and that based on his

observations he does “not believe that she is competent to be independent and look after herself without a guardian even though she is now an adult”. The surgeon further noted that the child “does not have the intellect required to do jobs with any intellectual requirement”, and that “she does not have the behavioral persistence to be able to concentrate or continue at menial tasks” (Judge’s decision, at para. 17). [ 25 ] The Judge also considered a report about the child’s circumstances and disabilities, which was authored by a psychologist and filed by consent of the parties.

In this report the child’s needs were described as “significant” and “lifelong”, and “significant delays” were noted respecting the child’s “ verbal and non-verbal intelligence, fine and gross motor skills, language, activities of daily living, and socialization skills” (Judge’s d ecision, at para. 19).

Notably, this report also indicated that the child was living exclusively with her mother at the time the report was prepared, and that the expectation was that the child would continue to live with her mother and remain in her mother’s care. [ 26 ] Further the Judge noted that the child’s circumstances had been considered by this Court in a decision filed approximately ten years previously, wherein this Court observed at that time that the child “suffered brain damage due to the negligence of a physician … is significantly and permanently disabled … will never be able to work or live independently, and will require constant supervision and care throughout her lifetime” (Judge’s decision, at para. 21). [ 27 ] The Judge considered evidence from the child’s mother who “ described [her daughter]” as “like a small child”, adding that she “still wears diapers, and needs 24-hour attention”, which the mother provides, along with hired care workers and respite workers (Judge’s decision, at para. 20). [ 28 ] Finally, the Judge observed that the father also recognized his daughter’s ongoing, serious disabilities.

The Judge noted the father’s evidence that he “accepts that [the child’s] disabilities mean she is unable to care for herself independently, or even contribute to caring for herself” ( Judge’s decision, at para. 7). [ 29 ] Based on the evidence, the Judge concluded that the child was unable, by reason of disability, to withdraw from her mother’s charge. No legal or factual error has been demonstrated in the Judge’s analysis or conclusion in this regard.

The evidence considered by the Judge clearly demonstrated that the child suffered from a serious and permanent disability, which mandated that she remain under her mother’s charge. As such, any onus or burden on the mother to establish that the child remained a child of the marriage was satisfied. [ 30 ] The evidence established that the child is clearly unable to “manage daily living on [her] own without the parent’s regular and consistent care, monitoring and support” ( see Weber v. Weber , 2020 ONSC 4098 , at para. 63 ).

The “regular and consistent care” required in these circumstances takes the form of 24-hour care, provided daily by her mother, paid caregivers (whose care of the child enabled the mother to work outside the home) and paid respite workers. [ 31 ] The Judge considered the nature and circumstances of the child’s disability, in the context of her daily life, in concluding that the statutory requirements of the Divorce Act had been met, and that the child remained a child of the marriage.

The evidence also supported the conclusion that the child’s inability to withdraw from her mother’s charge was directly attributable to her disability ( see Ethier v. Skrudland , 2011 SKCA 17 , at paras. 27 , 29 ) . [ 32 ] There was no error established in this regard. As such, appellate intervention would neither be required nor appropriate.

Is the child unable to obtain the necessaries of life? [ 33 ] The Judge also considered the father’s submission that, even if the child is unable to withdraw from her mother’s charge due to her disability, she is no longer a child of the marriage because the structured settlement payments enable her “to obtain the necessaries of life” ( per s. 2(1) (

b) of the Divorce Act ) without relying on child support from her parents. [ 34 ] The father’s position, as outlined by the Judge, was that the child “should no longer be considered a child of the marriage, notwithstanding her serious medical condition”, because “the monies from the settlement are able to cover all of [her] needs” (Judge’s decision, at para. 7).

The father’s contention was that “ the availability of the funds from the financial settlement means that [the child] is capable of withdrawing from her parents’ charge to obtain the necessities of life and there is no need for his obligation for support to continue” (Judge’s decision, at para. 22) . [ 35 ] The mother’s position was that the use of the structured settlement funds is restricted, because the “ intent was for the [structured settlement] funds to provide for [the child’s] needs arising from the injuries incurred as a result of the medical negligence”.

She argued that other expenses, not attributable to the child’s injuries arising from the negligence, are not covered by the settlement (Judge’s decision, at para. 10) . As noted above, these would include food, clothing, accommodations, and other day-to day expenses. [ 36 ] As such, the mother asserted that the structured settlement “does not necessarily cover all of the costs incurred in looking after [the child]”, that “there are expenses incurred that are not covered by the settlement”, and that “if the child support ceases these other expenses will be borne solely by her” (Judge’s decision, at para. 10) .

On this basis, the mother argued that there is an ongoing responsibility on both parents to pay for these expenses. [ 37 ] The Judge considered the child’s circumstances and rejected the father’s submission that the structured settlement payments enabled the child to obtain the necessaries of life, and that therefore she was no longer a child of the marriage. [ 38 ] Based on case authorities interpreting the relevant statutory provisions, including Briard v.

Briard , 2010 BCCA 431 , (leave to appeal to SCC refused, 33949 (17 February 2011)), the Judge concluded that, even if funds are available from other sources (in this case the structured settlement), this would not preclude the child from remaining a child of the marriage.

That is, “whether [the child] is still a child of the marriage is not solely a function of whether the funds provide for the child’s necessaries” (Judge’s decision, at para. 24) . [ 39 ] The Judge concluded that whether the child is able to obtain the necessaries of life is not in itself determinative of whether she remains a child of the marriage, because “ this is not the only basis for finding that the child is no longer a child of the marriage” (Judge’s

decision, at para. 26) . [ 40 ] Rather, the other statutory basis for remaining a child of the marriage, discussed above, namely whether the child is unable to withdraw from her parent’s charge due to her disability, must also be considered.

In this respect, the Judge concluded, having reviewed “the definition of child under the Divorce Act , the reasoning in Briard , and considering the circumstances of [the child], … which are not in dispute”, that the child was not capable of withdrawing from her mother’s charge by reason of her disability, and remained a child of the marriage (Judge’s decision, at para. 29) . [ 41 ] Notably, while the Judge clearly recognized that there were funds available to the child through the structured settlement, the Judge did not find that the structured settlement payments covered all the child’s expenses (i.e., all of her “necessaries of life”). [ 42 ] This is a different determination than, for example, the decision in Carpenter v.

March, [2012] N.J. No. 184, 325 Nfld. & P.E.I.R. 351 , wherein the Supreme Court of Newfoundland and Labrador held that a structured settlement covered all of the expenses of a disabled child (at paras. 18, 20), or in Krangle (Guardian ad litem of) v.

Brisco , 2002 SCC 9 , [2002] 1 SCR 205, at page 225, where it was held that all costs of a child’s care were fully covered by government resources. [ 43 ] Rather, and as discussed below, the Judge’s finding in the present case that the child was entitled to ongoing child support, beyond age nineteen, was premised on the fact that there would continue to be expenses related to the child’s necessaries of life that the structured settlement did not cover. [ 44 ] The decision reveals no error respecting the analysis or conclusion on this point.

As the Judge noted in the decision, where a child is over the age of majority, entitlement to support can be established by demonstrating that, due to disability, either the child is unable to withdraw from a parent’s charge (as discussed above) or the child is unable to obtain the necessaries of life (see Briard , at paras. 8-9 ). [ 45 ] The existence of external funds for a child’s benefit, as in this case with the structured settlement, is certainly a relevant consideration.

However, it is not determinative of whether the child remains a child of the marriage, particularly where entitlement to child support can otherwise be established based on the child’s inability to withdraw from her parent’s charge ( Wetsch v. Kuski , 2017 SKCA 77 , leave to appeal to SCC refused, 37836 (14 June 2018)). [ 46 ] Even where an external source of funds is available that covers many of the child’s financial needs (as in this case, with the structured settlement payments), the statutory requirements for entitlement to child support can still be satisfied (see for example Briard , at para. 9 ; Senos v.

Karcz , 2014 ONCA 459 ; Carpenter, at para. 7). [ 47 ] Where entitlement to child support is established, these external payments may also be relevant in considering the appropriate quantum of support payable (see Weber , at para. 67 ; Wetsch , at paras. 40, 77 ).

The Judge acknowledged this, indicating that the structured settlement funding “is more properly considered in determining what the appropriate level of child support should be, if any” (Judge’s decision, at para. 30) . [ 48 ] The decision reveals that the Judge considered the availability of external funds, provided through the structured settlement, in determining whether entitlement to support had been established and in determining the quantum of support that might be payable in light of these funds. [ 49 ] Having considered the specific circumstances of this matter, the Judge concluded that the existence of ongoing payments through the structured settlement did not preclude entitlement to child support.

No error has been demonstrated in this regard. Issue 2 If the child continues to be a child of the marriage, with ongoing parental obligations to provide child support, how should support be determined and shared between the parents? [ 50 ] Having found that the child was entitled to child support beyond the age of majority, the Judge considered the appropriate method of determining the quantum of support payable. [ 51 ] Section 3(2) of the Guidelines states that the amount of support for a child over the age of majority can be determined in two ways.

The first, under s. 3(2) (a), is to apply the Guidelines as if the child were still under the age of majority. Otherwise, if it is not appropriate to use the Guidelines , the second approach, under s. 3(2) (b), is to determine an appropriate amount “having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child”. [ 52 ] The Judge determined that it would not be appropriate to use the Guidelines to determine the quantum of child support in this circumstance.

This was because of the existence of an external source of funds in the structured settlement, which, the Judge indicated, made it “inappropriate to order child support at the table amount” (Judge’s decision, at para. 34). [ 53 ] There was no appeal of the Judge’s determination not to apply the Guidelines in quantifying support in this context, and this determination is consistent with case law, in similar circumstances, where external sources of payments were available (see, for example, Senos , at paras. 58, 67 ; Briard , at paras. 19, 22 ; Wetsch , at para. 2 ). [ 54 ] The Judge proceeded to consider the “condition, means, needs and other circumstances of the child” as well as the “financial ability of each spouse to contribute to the support of the child”, pursuant to s. 3(2) (

b) of the Guidelines . [ 55 ] The decision reveals that the Judge made four significant findings that were supported by the evidence in this respect, namely that: the terms of the structured settlement limit what expenses are covered; the structured settlement does not cover all the child’s day- to-day expenses, such as those expenses related to food, lodging, clothing etc.; the parents remain responsible for expenses not covered

by the settlement; and the father has the financial ability to pay child support, and the mother requires assistance to cover the child’s expenses. These findings are summarized below. (

i) The terms of the structured settlement limit what expenses are covered. [ 56 ] The Judge found that the structured settlement is only “ meant to cover those costs … incurred arising from the injuries suffered … as a result of the negligence” (Judge’s decision, at para. 38). [ 57 ] The payments from the structured settlement, the Judge noted, “are not without limits both in terms of duration, and the purposes for which the monies can be used”.

As such a “large portion of the monthly disbursements are consumed by the 24-hour care that [the child] requires and other medical or living expenses” (Judge’s decision, at para. 50). [ 58 ] This finding was consistent with the evidence at the hearing in the Supreme Court, that most of the structured settlement payment amounts are used to pay the costs of workers who care for the child while the mother works outside the home, and to pay the cost of respite care workers at other times. (ii) The structured settlement does not cover all the child’s day-to-day expenses, such as those expenses related to food, lodging, clothing etc. [ 59 ] The Judge held, based on the evidence, that “ there will be expenses that may not be covered by the [structured settlement] funds”.

In this regard, the evidence indicated that the Public Trustee has responsibility for managing the structured settlement and distributing payments under the settlement. The Judge noted the Public Trustee’s evidence that “it did not mean the funds were available to [the child] for any purpose or possible need”, and that the settlement funds “did not cover, for example, everyday expenses such as groceries ...” (Judge’s decision, at paras. 42, 51). [ 60 ] There was further evidence that the child had special dietary and feeding requirements resulting from her injuries, including the need for a special formula.

The Judge noted, based on the Public Trustee’s evidence, that the settlement might “cover particular or special needs with respect to [her] food because of her injuries”. However, the evidence was that “the settlement did not as a matter of course cover [the child’s] food” or other day-to-day expenses (Judge’s decision, at para. 44). (iii) The parents remain responsible for expenses not covered by the settlement. [ 61 ] The Judge noted that, while the child remains a child of the marriage, “ … in the view of the Public Trustee, everyday expenses were the obligation of her parents”.

Having determined that the child’s “needs far exceed those of the average adult or child”, the Judge determined that when “those needs are not covered by the settlement, it falls to the parents to make up the shortfall” (Judge’s decision, at paras. 44, 52). (iv) The father has the financial ability to pay child support, and the mother requires assistance to cover the child’s expenses. [ 62 ] After considering the financial information provided by the parties at the hearing, the Judge concluded that the father has “the ability to continue to pay child support” and that the mother “continues to require financial assistance beyond what she currently receives from the settlement funds, to assist in caring for [the child]” (Judge’s decision, at paras. 60, 66).

The Judge’s determination of how the child’s expenses would be shared [ 63 ] Based on the above findings, the Judge determined that there was an ongoing parental responsibility to cover the child’s expenses that were not otherwise paid by the structured settlement. This, the Judge noted, was necessary to ensure that “any shortfall in funds does not fall solely on the shoulders of [the mother] ”.

The Judge indicated that these expenses were to be shared proportionately, based on the parents’ respective incomes (Judge’s decision, at paras. 69, 72 ). [ 64 ] In considering the amount of support to be paid, the Judge noted that the mother had testified about recurring expenses relating to her daughter’s care that were not covered by the settlement, and that the mother had provided “an account of her monthly expenses” (Judge’s decision, at paras. 54, 62).

The Judge was also provided with details of payments received from the structured settlement, which delineated what expenses were, and were not, covered by those payments. [ 65 ] The Judge outlined the mother’s evidence, and her accounting of payments made by her for the child’s expenses, as follows: [63] According to this accounting, the total monthly cost of her housing, excluding her personal cell phone, is $1478.73 (mortgage $929.39, insurance $84.34, $225 for heat and electricity, $100 for repairs, and $140 for telephone, cable and internet). [The mother] estimated $800 a month for food, a portion of which presumably is consumed by [the child] and $220 for gas. [The mother] stated in her Statement of Facts (Consent Exhibit #1) that she receives $400 from the settlement to pay for gas to transport [her].

I take this to mean that [she] expends $220 over and above the $400 she receives from the settlement for gas.

While on its face, $600 a month in gas might seem substantial, I note that [the mother] also stated that at times, if there were amounts leftover from the $400, she would use it to purchase diapers for [her]. [64] Her monthly expenses for 2017, in the column under “Children” stated $120 for clothing and footwear and $100 for “pull ups” (of which I understand to be a brand name of diapers) and “formula” (of which I understand from her testimony to mean food for [her]). [65] The above estimates from the 2017 monthly expenses, in my view, are costs that can be related to [her] care.

Without including the remainder of the items under her monthly expenses that might properly be considered to relate solely to [the mother], these monthly living costs total $2818.73, or annually about $33,824. [ 66 ] The Judge also noted that, while the mother had provided information about expenses generally, there was no specific breakdown of the expenses paid by the mother directly for the child’s benefit (including, for example, the costs attributed to the child’s

food, accommodation, clothing, and other day-to-day expenses). [ 67 ] The general nature of the evidence regarding expenses attributable to the child’s needs was, perhaps, not unexpected because the father’s main submission in the Supreme Court hearing (and on appeal) was that his obligation to pay support ended completely when the child turned nineteen.

As discussed above, the Judge rejected this position and found that entitlement to support continued. [ 68 ] Given the limited financial information available , the Judge determined that the quantum of future child support would be established by the mother paying, upfront, for any of the child’s expenses that were not covered by the structured settlement and providing receipts to the father relating to these expenses.

These expenses were meant to be shared proportionately and the father’s share was to be paid to the provincial Support Enforcement program, and then provided to the mother. [ 69 ] The Judge outlined the approach as follows: the mother was to “ prepare a budget perhaps on an annual basis of the anticipated costs she incurs for [the child]”, “keep a detailed account of the monies she expends on [the child’s] behalf that does not come from the settlement funds”, and “forward a receipt of the expense incurred to [the father] and he will reimburse her, through the Support Enforcement Office within 30 days of receiving notification of confirmation from [the mother] of that expense” (Judge’s decision, at paras. 74-75 ). [ 70 ] The Judge indicated that this approach was meant to provide the “fairest solution”, “in keeping with [the parents’] obligations towards [the child], to overcome possible shortfalls in the settlements funds available for [her] care, and their respective financial abilities” (Judge’s decision, at para. 76 ).

Submissions on appeal regarding parental sharing of the child’s expenses [ 71 ] On appeal, there were submissions and information provided to the Court regarding difficulties with the functionality and efficacy of determining future support obligations based on this approach. The Court was advised that, since the Judge’s decision, no child support payments had been made or received, and that Support Enforcement had closed its file.

This is clearly not in keeping with the Judge’s intent that expenses not covered by the structured settlement would be proportionately shared between the parents. [ 72 ] There was also a recognition on appeal that this approach to parental sharing of the child’s expenses might engender additional litigation, should the parties be unable to agree about the appropriateness or quantum of a payment, or about whether a given expense that the mother had paid, and for which she was seeking the father’s contribution, should have been covered by the structured settlement. [ 73 ] In that respect, the present approach to sharing expenses raised potential difficulties for the mother (who would have to continue to pay all expenses in advance and request a subsequent contribution, which may or may not be realized), and the father (who may be requested to pay a significant amount, for which he may neither have budgeted nor accounted, in circumstances where he might contest the quantum of an expense or argue that the expense should properly have been paid from the structured settlement).

Supplemental written submissions on sharing expenses and quantum of support [ 74 ] At the appeal hearing, the parties made submissions about their positions on determining a workable approach to sharing the child’s future expenses in a manner that might address these concerns. [ 75 ] At the Court’s request, the parties provided supplemental written submissions specifically on the appropriate approach to sharing future child support payments for expenses not covered by the structured settlement. The parties also provided supplementary written submissions on quantum of support.

These written submissions were prepared by the parties and provided to the Court after the oral hearing of the appeal. The parties were advised that these submissions would be considered only if the Court upheld the Judge’s determination that the child remained a child of the marriage, and parental support obligations continued. As discussed above, this finding has been upheld on appeal. [ 76 ] The Court further observes that the issue of child support has been contentious and disputed between the parties for many years.

It has been frequently litigated in the Supreme Court and has been the subject of two prior judgments of this Court dating back more than ten years, well before the child reached the age of majority. [ 77 ] Generally, the Court would expect that the parties commence an application in the Supreme Court should they wish to revisit an approach set out by a Judge in determining future child support.

However, in the extraordinary circumstances of the present case, the Court has the benefit of the Judge’s decision, the evidence at the hearing in Supreme Court regarding expenses paid by the mother for the child’s care that are not covered by the settlement, the oral and written submissions on this issue on the appeal, the parties’ supplementary written submissions on the appropriate quantum and method of sharing future support payments, as well as updated financial and income information provided by the parties on appeal. [ 78 ] No additional evidence would be required to inform a decision in this context.

The costs and delay inherent in the parties returning to Supreme Court to relitigate this issue in the present circumstances would not serve the parties’ or the child’s best interests. The prospect of providing the parties with some degree of certainty and finality, having litigated this issue of child support for such an extended period, would also be in their mutual interests. [ 79 ] As such, in these extraordinary circumstances, it is possible and appropriate for this Court to consider the issue of payment of child support without remitting it to the Supreme Court for further litigation.

Determining the amount of expenses to be shared and the parties’ contributions [ 80 ] Having considered the evidentiary record, the Judge’s decision, as well as the parties’ original and supplementary submissions, the Court must determine the amount necessary to cover the child’s living expenses that are not covered by the structured settlement. Such expenses would include the child’s recurring and anticipated monthly expenses for items such as food, living accommodations, clothing, and other day-to-day needs.

[ 81 ] As noted above, the Judge determined that, considering the external funds available through the structured settlement, it was not appropriate to apply the Guidelines as if the child were under the age of majority. This finding was not appealed. As such, the amount is to be determined by considering the child’s circumstances, means, and needs, and the parents’ ability to pay, under s. 3(2) (

b) of the Guidelines . [ 82 ] As the Judge held that the child’s expenses were to be shared proportionately based on the parents’ ability to pay, determining the appropriate quantum requires consideration of the parties’ respective positions on the child’s recurring costs, along with their current income information. [ 83 ] At the Court’s request, the mother provided a detailed breakdown of expenses paid monthly for the child’s care that, in her submission, are not covered by the structured settlement.

Many of these expenses were also described by the mother in her evidence at the hearing in Supreme Court, and many of the details of these expenses were noted in the Judge’s decision. [ 84 ] The mother’s detailed breakdown included monthly expenses related to the child’s clothing, food, accommodations, personal care items, additional health insurance for the child, medical transportation costs, prescription drugs, and prescription glasses. In her written submissions, the mother estimated that the child’s expenses that were not covered by the structured settlement payments exceeded $1100 monthly.

This amount was exclusive of dental expenses that the child had incurred in recent years, which had also been paid by the mother. [ 85 ] The father provided a detailed response to the mother’s expense breakdown. In it, the father noted that some of the expenses would likely be incurred only irregularly, and are not monthly, recurring expenses.

Further, and more importantly, the father’s position was that, even if the entire amount of the child’s expenses outlined by the mother was accepted by the Court, these expenses could, and should properly, be paid from the funds in the structured settlement, and are therefore not parental obligations. [ 86 ] However as noted above, the Judge rejected the father’s position on this point and determined, based in part on the evidence of the Public Trustee, that: the terms of the structured settlement restrict what expenses can be paid; the settlement does not cover all the child’s day-to-day expenses; and the parents are responsible for expenses not covered by the settlement. [ 87 ] These findings were not challenged on appeal, and they were the basis of the Judge’s determination that the parents retain a financial obligation for the child’s expenses, notwithstanding the settlement funds.

The findings are also consistent with the Judge’s stated intention that “any shortfall in funds does not fall solely on the shoulders of [the mother] ” . [ 88 ] Having considered the Judge’s decision, the evidence and record at the hearing in Supreme Court, the parties’ oral and written submissions on appeal including the supplementary submissions on expenses and the updated financial information provided, the Court determines that the estimated recurring expenses for the child that are not covered by the settlement, and that, consistent with the Judge’s finding, should be shared proportionately by the parents for the child’s support, would be $800 monthly. [ 89 ] To achieve a proportionate sharing based on income, as the Judge indicated should occur, and based on the most recent income information provided by the parties, the father’s share of these expenses would be 63.3% of $800 (which is approximately $506) and the mother’s share would be 36.7% of $800 (which is approximately $294). [ 90 ] Accordingly, the father is to pay $506 monthly for child support.

This amount shall be paid directly to the Support Enforcement agency. Additionally, the parties are to provide annual updated income information to Support Enforcement in this regard, by the end of June annually, to determine their respective contributions to the child’s $800 monthly expenses. The father’s support obligation shall be prospective, and the first payment shall be due on January 31, 2024, with all future payments payable on the last day of each month thereafter.

Issue 3 Is the father entitled to reimbursement of child support payments made since the child turned nineteen? [ 91 ] The father requested that he be reimbursed for child support paid since the child reached the age of majority, when she turned nineteen. The father’s request in this regard appeared to be mainly premised on his submission that his child support obligations ended on the child’s nineteenth birthday, and that all payments made after that date were reimbursable. As noted, the Judge dismissed the father’s submission on this point and found that parental child support obligations continued.

The Judge’s decision in this regard has been confirmed on appeal. Therefore, there would be no reimbursement to the father on that basis. [ 92 ] As discussed above, the Judge also decided that the quantum of future child support should not be determined by applying the Guidelines , but rather by way of a proportionate sharing of the expenses not covered by the structured settlement.

As such, the Judge also considered whether the father was entitled to any reimbursement of past child support payments on the basis that the amount actually paid by him under the Guidelines , in the period since the child turned nineteen, might have exceeded the amount payable under the proportionate sharing approach. [ 93 ] The Judge determined, citing D.B.S. v.

S.R.G ., 2006 SCC 37 , [2006] 2 SCR 231, that, if the change in the approach to how child support was quantified resulted in any overpayment by the father, the Judge would exercise discretion and deny a request for reimbursement. [ 94 ] In D.B.S. the Supreme Court of Canada identified factors to be considered in this context, including whether hardship might result from a retroactive repayment, the conduct of the parties, the circumstances of the child, and whether there was any delay in bringing an application.

In exercising discretion in this respect, the Judge considered the factors that were applicable in this circumstance, specifically hardship and the conduct of the parties. [ 95 ] First, the Judge noted that allowing a reimbursement in this circumstance would “cause a substantial hardship for [the mother]”, whose “financial means are modest” (Judge’s decision, at para. 81).

[ 96 ] Second, in exercising discretion to deny a retroactive repayment, the Judge also considered the prolonged litigation over many years regarding the payment of child support and the father’s conduct throughout. The Judge observed that “this is not the first time [the father] has objected to having to pay child support for [the child]” (Judge’s decision, at para. 82). The Judge accepted the mother’s contention that “it has been a continuous struggle to receive child support from [the father]”.

The Judge indicated that there have been instances where the father has not been compliant in providing updated income information to calculate child support, and noted that he has “failed to comply with the terms of previous child support orders that have been in place in failing to provide income information to the recalculation office”.

In this respect, the Judge referenced a prior support order with unpaid amounts and observed that the father had been “in arrears for child support, and ordered to repay these amounts” (Judge’s decision, at paras. 82-83). [ 97 ] Further, in exercising discretion, the Judge indicated that it would be difficult to quantify the amount, if any, of overpayment in the particular circumstances of this case. Calculation of what expenses were covered by the structured settlement, and what expenses remained parental support obligations during the period in question, would not be easy to discern with clarity.

The Judge noted on this point that “it would be difficult to go back … and try to determine to what extent the monies expended by [the mother] for the care of [the child] should have come from the settlement and not child support contributions” (Judge’s decision, para. 81). [ 98 ] Considering the Judge’s reasons, and in the particular circumstances of this matter, I would conclude that no error is evident in the Judge’s exercise of discretion to deny the father’s request for repayment. Consistent with the Supreme Court of Canada’s guidance in D.B.S. , and more recently in Colucci v.

Colucci , 2021 SCC 24 , the Judge considered the husband’s request for reimbursement of support paid, considered the relevant circumstances and factors, exercised discretion in denying the request, and provided reasons as to the basis on which the discretion was exercised. As no error has been demonstrated, no appellate intervention is warranted respecting the Judge’s exercise of discretion in this regard ( Colucci , at para. 115 ). [ 99 ] Additionally, the Judge also determined that arrears in child support that were payable by the father should be forgiven.

There was no appeal in this respect, with the result being that the father has received the benefit of the forgiveness (i.e., the recission) of these arrears.

SUMMARY AND DISPOSITION [ 100 ] In the result, I would dismiss the appeal. [ 101 ] Further, I would affirm the Judge’s findings that: the child remains a child of the marriage for support purposes; child support obligations continue respecting the child’s expenses that are not covered by the structured settlement; and these expenses shall be shared between the parents proportionately, based on income. [ 102 ] Regarding the sharing of these expenses, based on a proportional sharing of the child’s day-to-day expenses that are not covered by the settlement, the father shall pay the amount of $506 monthly, with the first payment due on January 31, 2024.

This amount shall be paid to Support Enforcement, and the parties shall provide annual updated income information to Support Enforcement in this regard, in order to ascertain their proportionate contributions to the child’s $800 monthly expenses. Subsequent payments shall be payable on the last day of each month thereafter. [ 103 ] In the present circumstances, there shall be no order as to costs. _____________________ F.P. O’Brien J.A. I concur:____________________________ D.E. Fry C.J.N.L I concur:_____________________________ L.R. Hoegg J.A.